"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Monday, October 18, 2010

Simmons: VCAA Refined

Simmons: VCAA Refined

The decision in Patricia D. Simmons v. Eric K. Shinkseki, Opinion Number 03-1731, decided September 28, 2010, involved the impact and reach of the U.S. Supreme Court’s decision in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), which also included this case.

The Federal Circuit Court of Appeals had held that all types of VCAA (Veteran Claims Assistance Act of 2000) notice errors were presumed to be prejudicial and that the Secretary had the burden of proving the notice error was not prejudicial. This was a change from the Court of Appeals for Veteran Claims earlier rulings that the VCAA can be divided into four elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence that he has that may be relevant to the claim. In Mayfield v. Nicholson (2005), the Court of Appeals for Veteran Claims had held that although the first type of notice error was presumed prejudicial, the claimant was responsible for proving prejudice from the other types of notice errors.

On appeal, the Federal Circuit reversed. Reasoning that the VCAA was intended to be particularly pro-claimant and therefore obligated the VA to assist veterans claiming benefits, it held that all VCAA-notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. The VA can show this by demonstrating: (1) that any defect was cured by actual knowledge; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. The Federal Circuit disagreed with the Court of Appeals for Veterans Claims’ precedent deeming certain elements of the required notice more substantial than others. The court reasoned that allowing the VA to remedy the errors with post-decisional notices cannot satisfy the specific notification duties imposed by Congress on the VA, and presuming no prejudice does just that. Finding that the interpretation of the Court of Appeals for Veteran Claims conflicted with the uniquely pro-claimant system constructed by Congress in the VCAA, the Federal Circuit held all types of notice errors would be presumed prejudicial.

The Supreme Court concluded that the veterans will bear the burden of demonstrating that the VA’s errors made a substantive difference on the outcome of their claims cases. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and Ginsburg. The dissent argued that the framework established by the Federal Circuit - which presumes that a notice error was prejudicial unless the claimant has actual knowledge that cures the defect or is ineligible for benefits as a matter of law - provides the VA with an incentive to perform its obligation to claimants.

Regarding Simmons, the Supreme Court found contradictory evidence as to the prejudicial effect of the Type 1 (notice of what information or evidence is necessary to substantiate the claim) VCAA notice error and remanded the case and requested the Court of Appeals for Veteran Claims to decide whether reconsideration was necessary.

The Court then essentially sidestepped the issue by finding a right ear disability issue was not before the Court because while the VA had appealed a portion of the decision to the Federal Circuit, it had not actually appealed the remand for the claim of service connection for the right ear disability. A secondary issue on left ear disability was also remanded as so intertwined with the right ear disability issue as being properly handled together.

The Court concluded by saying that it need not decide whether Mayfield remains good law and that in light of years of appeals the veteran “should be well aware … what evidence is required to substantiate her claim; no additional VCAA notice is required.”

Decided by C.J. Kasold, and Judges Moorman, and Davis.